This proceeding arises under the Emergency Planning and Community Right-To-Know
Act ("EPCRA"). 42 U.S.C. § 11001 et seq. It involves the statutory reporting requirements for
toxic chemicals. Section 313(a) of EPCRA requires owners or operators of facilities that
manufacture, process, or otherwise use toxic chemicals in quantities exceeding a specified
threshold amount to file toxic chemical release forms. 42 U.S.C. § 11023(a). These toxic
chemical release forms are referred to as "Form Rs." Form Rs are to be filed annually with both
the U.S. Environmental Protection Agency ("EPA") and designated State officials. The Form Rs
provide information about the storage and release of the reported chemicals.(1)

EPA brought the present action against Burtin Urethane Corporation ("Burtin Urethane")
charging respondent with failing to comply with this Section 313(a) reporting requirement.
Specifically, EPA alleges that in 19 instances between 1991 and 1995, Burtin Urethane used or
processed toxic chemicals in excess of their reporting threshold amounts, but did not file the
requisite Form Rs.(2) The agency seeks a civil penalty of $193,548.
Section 325(c), 42 U.S.C. § 11045(c).

Subsequent to the filing of the complaint, EPA sought summary judgment on all
counts. In response, Burtin Urethane admitted the violations, namely that it had failed to file the
Form Rs as charged. Respondent, however, continued to challenge the civil penalty amount
sought by complainant.

An order was issued on September 11, 1997, granting EPA's motion for summary
judgment and finding respondent liable for 19 violations of Section 313(a). A hearing on the
remaining penalty issue was held on January 14, 1998, in Los Angeles, California.

For the reasons that follow, Burtin Urethane is assessed a civil penalty totaling $120,000.

II. Facts

Burtin Urethane owns and operates a chemical manufacturing facility located in
Santa Ana, California. The facility produces polyurethane resins that are used for insulation,
refrigeration, and structural products. Respondent blends urethanes composed of polyols,
blowing agents, catalysts, plasticizers, fire retardants, pigments, surfactants, and various
extenders. The chemicals used in the blending process are stored primarily in liquid form, in
large holding tanks. The blending of the chemical components takes place in the facility's
mixing tanks. After blending, the product is packaged for distribution. In addition, respondent
receives, stores, and repackages urethanes which it does not blend, and it produces a spray-on
polyurethane product that is applied to the beds of pick-up trucks. Jt. Ex. 1.

Burtin Urethane uses ethylene glycol, dichloromethane, methylenebis, diisocyantes,
trichlorofluoromethane, and 1,1-dichloro-1-fluoroethane at its facility. These are the chemicals
involved in the 19 violations and each is listed at 40 C.F.R. 372.65 as a toxic chemical. As noted
above, it is not disputed that Burtin Urethane violated Section 313(a) of EPCRA in failing to file
Form Rs for these toxic chemicals.

III. Penalty Discussion

A. The Penalty Criteria

Section 325(c)(1) of EPCRA provides for a civil penalty assessment of up to $25,000 for
each violation of Section 313. Section 325(c)(1), however, does not contain any criteria for
making a civil penalty determination. Accordingly, the penalty criteria contained in Section
325(b)(2) is looked to for guidance.

In determining the amount of a civil penalty, the
Administrator shall take into account the nature, circumstances,
extent, and gravity of the violation or violations, and, with respect
to the violator, ability to pay, effect on ability to continue to do
business, any history of prior such violations, the degree of
culpability, and such other matters as justice may require.

These factors will be considered in determining the civil penalty in this case.

B. The Role of EPCRA

Knowing the statutory penalty criteria to be applied here is simply not enough. The
overall purpose of the Emergency Planning and Community Right-To-Know Act must be
understood before these criteria can take on any meaning.

EPCRA was enacted as Title III of the Superfund Amendments and Reauthorization Act
of 1986, Pub. L. No. 99-499 (1986)("SARA"). The purpose of EPCRA is to provide
communities with information on potential chemical hazards within their boundaries and to
foster state and local planning efforts to control any accidental releases.

To achieve this end, EPCRA imposes a system of notification requirements on industrial
and commercial facilities, as well as mandating the creation of state emergency response
commissions and local emergency planing committees. The local emergency planning
committees are charged with developing emergency response plans based on the information
provided by the facilities. 42 U.S.C. §§ 11001-11003. The public, in turn, has the right to know
the information reported by the facilities, as well as the contents of the emergency response
plans. 42 U.S.C. § 11044. See Troy Corp. v. Browner, 120 F.3d 277 (D.C. Cir. 1997); Huls
America, Inc. v. Browner, 83 F.3d 445 (D.C. Cir. 1996). As the U.S. EPA's Environmental
Appeals Board ("EAB") recently observed in Woodcrest Manufacturing, Inc., Appeal No. 97-2
(July 23, 1998), "This information is critical for effective local contingency planning." 1998
EPA App. LEXIS 63, *55, citing 51 Fed. Reg. 41,570
(Nov. 17, 1986).

C. Evaluation of the Evidence

The evidence in this case warrants the assessment of a fairly severe penalty. First, it
shows that respondent failed to report the use of substantial quantities of toxic chemicals for a
significant period of time. Burtin Urethane used or processed 1,292,410 pounds of toxic
chemicals in 1991, 1,278,625 pounds in 1992, 1,028,350 pounds in 1993, 1,846,350 pounds in
1994, and 3,636,775 pounds in 1995. Jt. Ex. 1, ¶¶ 7-12. The toxic chemical threshold reporting
amount during this time was 10,000 pounds for each toxic chemical "used" and 25,000 pounds
for each toxic chemical "manufactured or processed." Section 313(f)(1),
42 U.S.C. § 11023(f)(1).

Despite using or processing vast quantities of toxic chemicals at its Santa Ana facility
from 1991 through 1995, respondent filed no Form Rs. The wide margin by which respondent
exceeded each of the chemical's threshold reporting amount, and the number of years this
condition existed, show the extensive nature of respondent's EPCRA violations.(3) The
significance of this failure is brought out by the testimony of EPA witness, Adam Browning.
Browning testified that the Form R information submitted to EPA "is aggregated and used to
ensure progress or lack thereof in terms of reducing on a state, county area wide basis aggregate
emissions." Tr. 219.

Second, while all the violations involve toxic chemicals, 14 of the 19 counts involve the
chemical classes of "freon" and "methylenebis isocyanate," otherwise known as "MDI."(4)

Dr. Gerald Hyatt testified on behalf of EPA as to the hazards which these chemical classes
present.(5) Dr. Hyatt explained that the primary risk to human health presented by MDI comes
from compounds that can be generated from MDI in the presence of extreme heat. He added that
the thermal decomposition of freons are almost as toxic as the thermal decomposition of MDI.
Regarding that hazard, Dr. Hyatt testified that the thermal decomposition of freons can result in
the formation of extremely toxic hydrogen chloride and chlorine gas. Tr. 44, 47. He also
acknowledged, however, that ethylene glycol, a component of anti-freeze, is relatively non-toxic.
Tr. 52, 55-56. This testimony shows the potential hazards presented by these chemicals and thus
underscores the importance of Form R filings. Also, while the testimony of Dr. Hyatt shows that
some of the involved chemicals are more hazardous than others, the fact remains that all the
chemicals are listed at 40 C.F.R. 372.65 as "toxic."

Third, Burtin Urethane's Santa Ana facility is located within one-half mile of an
elementary school and a high school, and within one mile of three other elementary schools, an
intermediate school, and a hospital. Jt. Ex. 1, ¶¶ 24 & 25. This is the "community" for which
Congress, in part, enacted the involved Right-To-Know provisions. The proximity of the schools
and the hospital to respondent's place of business, where substantial quantities of toxic chemicals
are processed and used, is a compelling fact which underscores the seriousness of Burtin
Urethane's failure to file the Form Rs.

In sum, the facts of this case show that Burtin Urethane's failure to file the subject
Form Rs constituted a serious breach of its EPCRA reporting obligation. As explained further
below, this breach was the result of respondent's negligence.

Burtin Urethane raises several arguments in support of its request for the assessment of a
minimal penalty. One argument is that it simply wasn't aware of EPCRA's Form R filing
requirements. Respondent's ignorance of the law defense is rejected.

In that regard, Jorge Burtin, the company's president, testified that the Orange County
Hazardous Waste Management District inspects the Santa Ana facility once a year. Also,
respondent submits reports to the South Coast Air Quality Management Board. Tr. 153. Given
the company's involvement with these local and regional environmental bodies, and the fact that
from 1991 through 1995 respondent used or processed several million pounds of toxic chemicals,
Burtin Urethane's failure to be aware of the existence of any Federal environmental obligations,
specifically the Emergency Planning and Community Right-To-Know Act, can not be excused.

Moreover, Mr. Burtin admitted that Material Safety Data Sheets ("MSDS") containing
references to "SARA 313," and thus to EPCRA, were filed with the company. Despite this fact,
the reference to SARA 313 apparently went unobserved by Burtin Urethane. Tr. 165.
Respondent's explanation that the SARA 313 notation went undetected because of the crush of
MSDS filings and the routine nature of the chemical filing information again is not an adequate
excuse for failing to know its filing obligations under EPCRA. These MSDS filings were a clear
road map to Section 313 of EPCRA.

In a related argument, Burtin Urethane seeks to excuse its filing omission on what it
views as EPA's failure to bring the Form R filing obligation to its attention. This argument must
fail. Respondent can not place the blame for its failure to file Form Rs on EPA's EPCRA
outreach program. The facts of this case establish that Burtin Urethane should have been aware
of Section 313(a)'s Form R filing requirements.(6)

Another argument raised by respondent is that ethylene glycol, freon, and MDI are, in its
view, on the lower end of the toxicity spectrum. Respondent, therefore, reasons that a lower
penalty is warranted. Respondent is wrong. The only reliable evidence in this case on the issue
of toxicity comes from EPA's expert witness, Dr. Hyatt. While Dr. Hyatt acknowledged that
ethylene glycol is relatively non-toxic, he was not of the same view with respect to freon and
MDI. In fact, Dr. Hyatt testified that if freon and MDI were subjected to fire, highly toxic gases
would result. Tr. 47.

In any event, regardless of where these chemicals fall in terms of their toxicity, the fact
remains that they are listed under 40 C.F.R. 372.65 as toxic chemicals. It is undisputed that they
are subject to Section 313's Form R filing requirements. Given this fact, Burtin Urethane's
unsubstantiated claim that it uses only chemicals characterized by the U.S. Department of
Transportation as non-flammable and non-hazardous is not persuasive.

Somewhat along the same lines, Burtin Urethane maintains that EPA's EPCRA internet
website, "Envirofacts Warehouse," does not report chemical usage. Accordingly, respondent
claims that the information which it did not report in this case "is not 'high priority' information
for dissemination to the public." Resp. Br. at 5. Other than the post-hearing submission of its
own website documents, EPA does not respond to the company's argument.

This court is not persuaded that the civil penalty assessment should be lowered because of
what the EPA publishes, or does not publish, in its Envirofacts Warehouse. The focus of this
penalty proceeding is upon the filing requirements of EPCRA Section 313, and the purpose for
which those provisions were enacted. Congress enacted this reporting statute in part so that the
public could know what toxic chemicals were being manufactured, processed, or otherwise used
in its community. How EPA distributes this reported information is an entirely separate matter.
In any event, as noted earlier, Form Rs provide information regarding aggregate emissions on a
State-wide and county-wide basis. Tr. 219.

Also unpersuasive is respondent's argument that the penalty should be low because its
facility is essentially fire and earthquake proof. Even assuming respondent's sweeping assertions
to be true, the focus of this matter is not upon the likelihood of an accidental chemical release
occurring, but rather the statutory requirement that Burtin Urethane report the amounts of toxic
chemicals processed, manufactured, or otherwise used at its facility.

D. The Ability-To-Pay Issue

Burtin Urethane argues that it is unable to pay the $193,548 civil penalty sought by EPA.
Inasmuch as the penalty being assessed is $120,000, respondent's ability-to-pay defense will be
measured against this lesser amount. It is the finding of this court that Burtin Urethane has the
ability to pay a civil penalty of $120,000.(7)

[Confidential Business Information Deleted]

ORDER

Accordingly, for the 19 violations of Section 313(a) of the Emergency Planning and
Community Right-To-Know Act at issue in this case, Burtin Urethane Corporation is assessed a
civil penalty of $120,000. 42 U.S.C. § 11045(c). Respondent shall pay the civil penalty
within 60 days from the date of this order.(8)
Unless this case is appealed to the Environmental
Appeals Board in accordance with 40 C.F.R. 22.30, or unless it is directed for review sua sponte,
it will become a final order of the Board.

Carl C. Charneski
Administrative Law Judge

1. Form Rs are to include whether the toxic chemical is manufactured, processed, or
otherwise used, an estimate of the maximum amounts (in ranges) of the toxic chemical present at
any time during the preceding calendar year, waste treatment and disposal information, and the
annual quantity of the toxic chemical entering each environmental medium. Section 313(g)(1),
42 U.S.C. § 11023(g)(1).

2. The 19 counts are broken down as follows. Counts I - V: from 1991 to 1995,
Burtin Urethane processed between 53,985 pounds and 86,475 pounds of ethylene glycol;
Counts VI - X: from 1991 to 1995, it otherwise used between 18,000 pounds to 22,000 pounds
of dichloromethane; Counts XI - XIV: from 1991 to 1994, respondent processed between
794,450 pounds and 1,154,800 pounds of methylenebis; Count XV: in 1995, respondent
processed 2,782,050 pounds of diisocyanates; Counts XVI and XVII: in 1991, respondent
processed 400,000 pounds of trichlorofluoromethane and in 1992, it processed 410,000 pounds
of this chemical; and Counts XVIII and XIX: Burtin Urethane processed 597,000 pounds of
1,1-dichloro-1-fluoethane in 1994, and 746,250 pounds of 1,1-dichloro-1-fluoroethane in 1995.
Jt. Ex. 1.

3. Burtin Urethane represents that subsequent to the hearing in this case, it has filed all
outstanding Form Rs for the years 1991 through 1994. Resp. Br. at 11 n.3. Apparently, this
filing brings respondent up-to-date. Tr. 68-69.

4. The chemicals involved in this case can be grouped into three categories. They are
ethylene glycol (Counts I through V), freon (Counts VI through X and XVI through XIX), and
MDI (Counts XI through XIV). Tr. 53-55.

5. Dr. Hyatt holds a Ph.D. in Pharmacology and Toxicology. He was accepted as an
expert in the field of toxicology. Tr. 36, 40.

6. Insofar as EPA's EPCRA outreach program is concerned, the agency's Regional Toxics
Release Inventory Program Coordinator testified that on the basis of data obtained from Dun and
Bradstreet reports, numerous mass mailings were made to covered facilities. The Program
Coordinator was of the view that respondent would have been so notified in the normal course of
business. Tr. 79.

7. Resolution of this issue involves consideration of Confidential Business Information
("CBI"), which is protected by 40 C.F.R. Part 2. Accordingly, only the parties and the agency's
Regional Hearing Clerk will be provided with the CBI analysis portion of this decision.

8. Payment may be made by mailing, or presenting, a cashier's or certified check made
payable to the Treasurer of the United States of America, EPA Region 9, Melon Bank, P.O. Box
360863M, Pittsburgh, Pennsylvania, 15251.